Johnson v. State ( 1885 )

White, Pbesidihg Judge.

A previous information based upon this same complaint had been quashed, and it is here contended that the quashal of the information rendered the complaint functus officio, and that a new" information could not be predicated upon it. It is well settled otherwise, the rule being that an information is not exceptionable because based upon an affidavit which had served the same purpose in respect of a previous information which had been dismissed. The insufficiency of an information would not necessarily vitiate the affidavit on which it was based. (Goode v. The State, 2 Texas Ct. App., 520; Boyd v. The State. 11 Texas Ct. App., 80; Pittman v. The State, 14 Texas Ct. App., 576.)

This conviction was for a simple assault. It appears that appellant had contracted with Sanders, the prosecutor, to work for him until his crop was laid by. Sanders was to pay him by letting him have a certain horse. Appellant used the horse during the time he worked for Sanders whenever he desired to do so, claiming him as his own. Appellant worked something over two months, and then left, taking the horse with him. Sanders found the horse at Trinidad Ferry, and defendant was there also. He took the horse and started off with him, when defendant ran in ahead of him, to the road in front of him, and, presenting a double-barreled shot-gun, cocked, at, him, said he would die before Sanders should take the horse, and cursed, and swore he would kill Sanders if he attempted to take the horse away. Upon which Sanders said he did not wish any fuss and hitched the horse back where he had taken him from.

Under decisions of the supreme court, and of this court, the presenting of the gun, cocked, at Sanders, accompanied by the language used, was in part execution of a purpose of violence, and clearly an assault. (Bell v. The State, 29 Texas, 494; Cato v. The State, 4 Texas Ct. App., 87; Young v. The State, 7 Texas Ct. App., 75; Johnson v. The State, 7 Texas Ct. App., 210.)

There were other facts in the case which tended to show that defendant believed he had the right to the possession of the horse when he took him, and Sanders had paid him nothing for his two months’ labor. Under these facts we think defendant was entitled to his special requested instruction which the court refused, and which was as follows, viz.: “If the defendant believed at the time of the difficulty that he had a right to the possession of the horse over which he and Sanders had the dispute; and that defendant then and there had possession of said horse, then the defendant would have the right to protect his possession by preventing Sanders from taking said horse from him.” Because the court refused to give this instruction, the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

[Opinion delivered December 9, 1885.]